Citation Nr: 1756435	
Decision Date: 12/07/17    Archive Date: 12/15/17

DOCKET NO.  13-31 168A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to a rating higher than 10 percent for a left knee disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

S. Layton, Counsel


INTRODUCTION

The Veteran served on active duty from September 2005 to February 2010.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

In his substantive appeal, the Veteran requested a hearing before a Veterans Law Judge at the RO.  However, in correspondence received in September 2016, the Veteran withdrew that hearing request.

The appeal is REMANDED to the Agency of Original Jurisdiction.


REMAND

The Veteran last underwent VA examination for the knees in August 2013.  The Board recognizes that, generally, the mere passage of time is not a sufficient basis for scheduling another examination.  Palczewski v. Nicholson, 21 Vet. App. 174 (2007).  However, the Veteran has essentially argued that the left knee disability increased in severity since his prior VA examination.  He has submitted evidence suggesting an increase in left knee symptoms.  While the most recent August 2013 VA examination report shows that the Veteran had left knee flexion to 105 degrees, the Veteran has submitted an August 2015 orthopedic surgery consult which shows that he had an active range of motion of the left knee from 0 to 66 degrees.  Where the evidence of record does not show the current state of the Veteran's disability, a more current VA examination must be conducted.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2017).  The Board further notes that the most recent VA outpatient records associated with the claims file date only through July 2013.  In light of the suggested increased symptomatology reported, and the lack of accompanying contemporaneous medical records, remand is required to obtain updated treatment records and provide the Veteran an updated VA examination that indicates the current symptomatology of the service-connected left knee disorder.

Accordingly, the case is REMANDED for the following action:

1.  With any necessary authorization from the Veteran, obtain any outstanding VA and private treatment records.  All attempts to locate records must be documented in the claims file.

2.  Then, schedule the Veteran for a VA orthopedic examination.  The examiner must review the claims file and should note that review in the report.  All testing deemed necessary should be performed.  A complete rationale for all opinions should be provided in the examination report.  Concerning the service-connected left knee disability, the examiner should specifically state ranges of motion for active and passive motion and on weight-bearing and nonweight-bearing.  The examiner should comment on whether there is any additional loss of function due to weakened movement, excess fatigability, incoordination, pain on use, or on flare up for the left knee.  The examiner should describe the severity of any recurrent subluxation or lateral instability of the left knee.  The examiner should indicate if replacement of the left knee or any other surgical procedure is medically indicated.

3.  Then, readjudicate the claim.  If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response.  Then, return the case to the Board.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  38 U.S.C.A. §§ 5109B, 7112 (West 2014).



_________________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2016).